Recently, on BarkGrowlBite, I posted an article on former NYPD Commissioner Ray Kelly which included his views on good and bad police reform proposals. Kelly defended the much maligned practice of ‘stop and frisk’ tactics as “a tool that should be in the toolbox,”
Kelly expressed his opposition to abolishing ‘qualified immunity’ for police officers, which protects cops from many civil lawsuits. House Democrats led by Nancy Pelosi have filed legislation that would abolish qualified immunity for police officers. Kelly believes that is a recipe for police inaction: “If you’re personally liable and in a high-risk business, chances are your risk-taking is going to be quite a bit less. I would say that’s probably bad for society.”
On Monday, the Supreme Court upheld qualified immunity by refusing to hear a slew of cases against police officers that have been piling up before the court. The court relied on Harlow v. Fitzgerald (1982) in which it ruled that “government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
And while the White House is open to police reforms, Trump’s press secretary labeled proposals to reform qualified immunity as a “non-starter.”
Tom, who comments on Big Jolly Times from time to time, responded to the Kelly article y saying: “Qualified immunity has become a license for police and other government officials to crap all over the rights of citizens with no fear of civil liability.”
That is not correct. Cops can be sued if they knowingly violated the constitutional rights of people. And so can the cities and counties that employ those cops.
‘Qualified’ is the key word. Qualified immunity does not protect bad cops. Whenever bad cops are protected, it’s because of negotiated police union contracts and civil service rules.
Qualified immunity protects cops from lawsuits based on spurious accusations. Let’s take excessive force. Police officers are always being accused of using excessive force when in most instances they used only the amount of force needed to control a person who is resisting arrest.
In August 2014, NYPD cops tried to arrest Eric Garner, a 400-pound giant. During a struggle when he resisted arrest, officer Daniel Pantaleo applied what appeared to be a choke hold while Garner uttered the now famous words: “I can’t breathe.” Pantaleo was never charged by the DA or the Feds, but he was unjustly fired and stripped of his pension in August 2019 at the insistence of Sandinista-loving Mayor Bill de Blasio.
While the death of Garner was a tragedy, Pantaleo’s firing was a travesty. Until he applied what may or not have been a choke hold, the other officers were unable to control the”gentle giant” as Garner was described.
What looks to bystanders as excessive force may actually be the force officers had to use in order to control a person who is resisting arrest.
Yes, cops do use excessive force, but they are not necessarily bad cops. Often overlooked is what led a cop to kick the shit out of a suspect. Did the suspect spit in the cop’s face or kick him in he balls? Or did the suspect flee in his car and during the chase endangered the lives of innocent drivers and pedestrians? Yes, that pisses off the ops and everyone knows that cops should never ever lose their tempers. But losing one’s temper is a human frailty and cops are not robots.
However, cops should never use excessive force when they get pissed off because a suspect called them vile names.
Police officers are always confronted with spurious accusations, When I seized heroin or other illicit drugs from a drug user or dealer, I was almost always accused of planting the drugs, a standard defense at the time. When cops arrest a woman, they are often accused of sexually abusing the arrestee when nothing like that even remotely occurred.
Should cops face lawsuits for doing their job? Of course not! And that is why qualified immunity must be kept in place.
When cops knowingly violate the constitutional rights of citizens, they can be sued for their misconduct. Houston PD officer Gerald Goines and his partner Steven Bryant should and can be sued by the families of Rhogena Nicholas and Dennis Tuttle who were killed in the infamous Harding Street raid. However, since Goines and Bryant do not have deep pockets, any lawsuit will include the city and HPD.
But when police officers do their job and something goes wrong if they make an unintentional mistake, they should continue to be immune from lawsuits. And they should continue to be protected against spurious accusations. That’s why qualified immunity must be kept in place.